What you do at home can get you fired

And we're not just talking about social media

Be careful to think about how your behavour outside of work might reflect upon your professional life.

Photograph by: Stock photo
, Thinkstock

We are always under a microscope. Social networking, the trail left by Internet and email usage, ubiquitous security cameras and the other paraphernalia of the information age makes virtually all of our activity detectable and disseminable. Concomitant with the rise of privacy rights is its dramatic diminishment.

Why is this germane to employment law? Because fireable misconduct, more than ever before, does not end when you leave the office.

There have been a raft of cases recently in which employees have been fired for personal blogs, emails and social-network postings disparaging, threatening or embarrassing their employers. It is hardly surprising that courts and arbitrators have found that those can be cause for discharge.

But there are cases where off-work activity also may be cause for dismissal even when such a posting has nothing to do with the employer.

Even before social media, when a university lecturer was convicted of fraud in the early 1980s in an insurance claim unrelated to his employment, a court concluded that it was cause for dismissal. The reason? It could undermine confidence in the school and deleteriously impact both upon its enrolment and funding.

Similarly, William Cherniwchan, then superintendent of schools for the county of Two Hills in Alberta, was convicted of submitting time sheets on behalf of his son, falsely stating he had worked for a farmer for the summer. This made his son eligible to receive money from an Alberta agricultural funding program. Cherniwchan was fired for cause. The court agreed, noting that he occupied a position of trust, as he "had to command the respect of teachers, students, the school board and the community at large." His dishonesty was incompatible with that.

Robert Hyland, a chartered accountant and manager of internal audit at the Royal Alexandra Hospital in Edmonton, was fired in 2000 when the hospital learned he had not paid GST when purchasing his personal automobile. Unlike the first two, there was no conviction - rather, the incident was reported by a coworker.

Nevertheless, the court found cause for discharge, noting that: "The maintenance of public confidence in financial accountability and regularity were important to the hospital." The court noted that "the expectations of the community are a relevant consideration.... It would seem somewhat bizarre; the hospital's auditor, who ensures compliance, has himself engaged in questionable efforts to avoid payment of GST on his personal vehicle." The court noted that his very job involved ensuring rectitude on behalf of his employer, a public institution, as well as co-ordination with Revenue Canada.

In all of the cases cited above, the conduct related to the nature of the employees' roles. However, even when the misconduct bears no relation to a person's job functions, it can still be cause for discharge if the employer's interests, such as its reputation, are affected.

Going online to access kiddie porn in the "privacy" of his own home was cause for the discharge of Philip Kelly, a manager at Linamar Corp. In 2002, Mr. Kelly was charged by the Ontario Provincial Police for possession of child pornography and was subsequently fired because of potential damage the publicity would have on Linamar's reputation, with regard to its philanthropy directed toward young children, including sponsoring their attendance at cultural events, sponsoring their sports teams and working with the local schools in innovative educational projects.

The broad panoply of offsite misconduct that could be cause for discharge is too broad to be catalogued and is limited only by workplace norms and employees' imaginations. But whether at work or outside, the test is the same: If misconduct is sufficiently serious to threaten an employer's reputation or wellbeing, it can be cause for dismissal without severance.

Howard Levitt is senior partner of Levitt LLP (levittllp.ca), employment and labour lawyers. He practises employment law in eight provinces and is author of "The Law of Hiring in Canada."

Be careful to think about how your behavour outside of work might reflect upon your professional life.

Photograph by: Stock photo, Thinkstock

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